Union Carbide Corp. v. Font

Decision Date26 February 2020
Docket NumberNo. 3D18-1529,3D18-1529
Citation299 So.3d 491
Parties UNION CARBIDE CORPORATION, Appellant/Cross-Appellee, v. Paula FONT, etc., Appellee/Cross-Appellant.
CourtFlorida District Court of Appeals

Carlton Fields, P.A., and Matthew J. Conigliaro (Tampa) and Ryan S. Cobbs (West Palm Beach), for appellant/cross-appellee.

The Ferraro Law Firm, P.A., and Mathew D. Gutierrez and Juan P. Bauta, II, for appellee/cross-appellant.

Before SALTER, LINDSEY and HENDON, JJ.

SALTER, J.

Union Carbide Corporation ("Union Carbide") appeals a final judgment and jury verdict entered in favor of Paula Font ("Ms. Font"), plaintiff below and personal representative of the estate of her late father, Luis Torres ("Mr. Torres"). Ms. Font cross-appeals the trial court's rulings allowing the jury to apportion liability to non-party Johns Manville Corporation ("Johns Manville") as a Fabre 1 defendant.2 The underlying circuit court case is based on Ms. Font's wrongful death case for damages allegedly caused by Mr. Torres's exposure to asbestos-containing building materials manufactured by Union Carbide, resulting in his death from mesothelioma

.

In its appeal, Union Carbide raises three allegedly-reversible errors. For the reasons explained below, we find two of those issues meritorious, and we reverse the final judgment against Union Carbide, remanding for a third jury trial.3

Union Carbide's Appeal: The Claims of Reversible Error

Union Carbide's appeal seeks reversal for these three reasons:

1. The trial court denied Union Carbide's motion for judgment as a matter of law on the issue of causation. This issue is reviewed de novo, and a directed verdict would only be appropriate if the trial court, viewing Ms. Font's evidence in the light most favorable to her, determined that no reasonable jury could render a verdict in her favor and against Union Carbide. See Competitive Softball Promotions, Inc. v. Ayub, 245 So. 3d 893, 895 (Fla. 3d DCA 2018) ("We review a trial court's ruling on a motion for a directed verdict de novo, and we must evaluate the evidence in the light most favorable to the nonmoving party."); Blake v. Hi-Lu Corp., 781 So. 2d 1122, 1123-24 (Fla. 3d DCA 2001).

We reject Union Carbide's argument on this point, as Ms. Font's evidence, including the presentation of her expert witnesses, Dr. Brody and Dr. Finkelstein, provided competent, substantial evidence sufficient to support a prima facie case and the denial of Union Carbide's motion for a judgment as a matter of law. Northrop Grumman Sys. Corp. v. Britt, 241 So. 3d 208, 213 (Fla. 3d DCA 2017).

2. The trial court abused its discretion in excluding from evidence seven affidavits (the "Excluded Affidavits") signed by Mr. Torres under oath in 2009, only fifteen days before his death, in support of his claims of exposure to asbestos-containing products manufactured or distributed by non-party entities. Those entities, and three others for which similar affidavits were admitted into evidence (the "Admitted Affidavits"), created and administered asbestos settlement trusts as part of their bankruptcies, from which allowed claims could be paid.4

The trial court's evidentiary rulings are reviewed for an abuse of discretion. Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So. 3d 867, 871 (Fla. 3d DCA 2013). The trial court's interpretation of the evidence code, however, is reviewed de novo. L.L. v. State, 189 So. 3d 252, 255 (Fla. 3d DCA 2016).

Each of the Excluded Affidavits: (a) included a claim by Mr. Torres that he was exposed to asbestos-containing material and breathed air containing particles of dust arising from such materials, (b) identified specific products manufactured or distributed by the named non-party entity, and the years during which that entity manufactured or distributed the products, and (c) included an attachment referenced in the affidavit captioned "Work History/Exposure Sheet," listing the pertinent jobsites, locations, and years of work, designating where and when Mr. Torres used the asbestos-containing materials and products. In the first jury trial of Ms. Font's claims (culminating in a verdict for Union Carbide), the Excluded Affidavits were admitted into evidence.

In the second jury trial presently under consideration, each of the Excluded Affidavits was offered against the representative of Mr. Torres, who concededly executed the document under oath and as a legal claim against a non-party manufacturer or distributor. Those legal claims identified products of the non-party, which exposed Mr. Torres to asbestos-containing materials and particles of dust arising from those materials at specific work locations and for specified intervals of time. Subject only to a relevance objection, the Excluded Affidavits are admissions within a specific exception, section 90.803(18), to the hearsay rule, section 90.802, Florida Statutes (2018). Collectively, the Excluded Affidavits identify some fifty alleged asbestos-containing products claimed by Mr. Torres to have exposed him to asbestos-containing materials and particles of dust arising from those materials.

Ms. Font's objection to the admissibility of the Excluded Affidavits (and the jury's consideration of them) was based on a purported failure by Union Carbide to provide evidence of causation implicating those exposures in Mr. Torres's disease and death. The trial court ultimately allowed the Admitted Affidavits because they related to products manufactured or distributed by three Fabre defendants, and it sustained the objection as to the Excluded Affidavits because no expert witness for either side provided opinion testimony establishing those seven entities' involvement and fault in Mr. Torres's disease and death.

That analysis pertains to a defendant's burden relating to its affirmative defense seeking an apportionment of fault to a non-party under Fabre and the addition of that non-party to the verdict form. However, "[t]o present an ‘empty chair’ defense, the defendant need only answer the complaint with a general denial and argue to the jury that the injury was due to the negligence of a non-party to the suit." Vila v. Philip Morris USA Inc., 215 So. 3d 82, 85 (Fla. 3d DCA 2016).

The Excluded Affidavits represent Mr. Torres's own claim that the seven entities and their identifiable products exposed him to asbestos-containing materials and dust. They are directly relevant to Union Carbide's claims that non-parties were responsible, whether entirely or in part, for Mr. Torres's cumulative exposure and his contraction of mesothelioma

.

The ruling under review is not limited (as Ms. Font contends) to whether the seven non-party entities identified in the Excluded Affidavits should have been added to the verdict form as additional Fabre defendants. Rather, we must consider whether the refusal to admit the Excluded Affidavits as evidence of alternative causes was harmless error. We conclude that this error was not harmless, reviewed in light of the civil harmless error standard, Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (Fla. 2014) : "[T]he beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict."

The First District reached the same result in a similar case. In R.J. Reynolds Tobacco Co. v. Mack, 92 So. 3d 244, 248 (Fla. 1st DCA 2012), the defendant argued that "the trial court erred in excluding its alternative causation evidence on the basis that [the defendant's expert witness] was unable to testify that the alternative causes were more likely than not the cause of the decedent's laryngeal cancer

." The appellate court concluded that the trial court "improperly shifted the burden of proof as to causation" to the defendant and reversed. Id. at 248.

As a result, we are constrained to reverse the final judgment and remand the case for a new (third) trial.

3. Union Carbide's third claim of reversible error is based on the trial court's disallowance of a particular term in a jury instruction regarding the "learned intermediary" defense. Where an instruction is alleged to be deficient as an accurate statement of law, our review is de novo. Chacon v. Philip Morris USA, Inc., 254 So. 3d 1172, 1175 (Fla. 3d DCA 2018). "A party is entitled to have the jury instructed on the theory of its case when the evidence supports that theory." Aubin v. Union Carbide Corp., 177 So. 3d 489, 517 (Fla. 2015).

Union Carbide objected to the trial court's use of an instruction, which addressed Ms. Font's "failure to warn" claim and the learned intermediary defense to such a claim. The pertinent part of the instruction given was:

In the duty to warn the end user, Union Carbide can rely on an intermediary manufacturer to relay warnings to
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